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2012 DIGILAW 1026 (BOM)

Sanjay Bhiku Gade v. State of Maharashtra

2012-06-11

P.D.KODE, V.M.KANADE

body2012
Judgment : (V.M. Kanade, J) 1. The Appellant is challenging the judgment and order passed by the Additional Sessions Judge, Baramati in Sessions Case No. 43 of 2003. By the said judgment and order dated 13th December, 2005 the Additional Sessions Judge was pleased to convict the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer simple imprisonment for three months. 2. The prosecution case in brief is that deceased Dattatraya had borrowed Rs. 500/-and according to him, he had repaid Rs.400/- and only Rs. 100/- was to be repaid. However, the accused was demanding the entire amount of Rs. 500/- and therefore, there was dispute between them. On 8-10-2002, the appellant demanded an amount of Rs. 500/-. As a result, there was quarrel between the accused and the deceased. On 9-10-2002 the accused abused the deceased near the grocery shop of one Salunkhe and there was a scuffle in which the deceased was assaulted by sickle by the accused and thereafter the deceased was taken to the hospital at Lonand. However, he succumbed to the injuries and died. 3. The prosecution examined 8 witnesses. On the basis of the evidence adduced by the prosecution, the trial Court convicted the appellant for the offence punishable under Section 302 of the I. P. Code. The learned counsel appearing on behalf of the appellant has taken us through the judgment and order of the trial Court and also invited our attention to the evidence adduced by the prosecution. It is firstly, submitted that there was no eye witness to the said incident and the entire case of the prosecution is based on the circumstantial evidence. It is submitted that no witness had seen the accused assaulting the accused with sickle, and therefore, it is submitted that the trial Court ought to have given the benefit of doubt to the accused. It is then submitted that PW 7 – Dr. Satishkumar Sarode who had conducted the post mortem has clearly admitted in his cross-examination that the injuries which were caused to the deceased could be caused as a result of fall on the steel cot, which was there on the spot. It is then submitted that PW 7 – Dr. Satishkumar Sarode who had conducted the post mortem has clearly admitted in his cross-examination that the injuries which were caused to the deceased could be caused as a result of fall on the steel cot, which was there on the spot. The learned counsel further submitted that two conflicting versions were given by the two doctors, which were examined by the prosecution. It is submitted that PW 7 had clearly stated in his cross-examination that the injuries which were caused to the deceased could have been possible as a result of fall on a steel cot; on the other hand, PW 8 – Dr. Sanjay Shivade had stated that these injuries could be caused by the sickle, which was seen in the hands of the appellant /accused by the son of the deceased (PW 4) and by the brother of the deceased (PW 5). It is submitted that it was not open for the trial Court to reject the evidence of PW 7 Dr. Sarode, and to accept the version given by PW 8 Dr. Sanjay Shivade. It is submitted that the complainant/wife of the deceased did not see the incident and her evidence in respect of the assault by the appellant on the deceased was hearsay evidence, since she herself had not witnessed the incident. It is then submitted that in any case, the appellant and the deceased were both under the influence of alcohol and the incident had taken place at the spur of the moment. In all probability the Appellant had in self-defence or under grave and sudden provocation assaulted the deceased and therefore, the offence at the highest would fall in Exception first or second to Section 300 and not under S. 302 of the I. P. C. In support of the said submission, the learned counsel has relied on following two judgments of the Apex Court. (i) AjitSingh, Appellant Vs. State of Punjab [(2011) 9 Supreme Court Cases, 462); (ii) RajwantSingh Vs. State of Kerala [AIR 1966 Supreme Court 1874]. 4. It is, therefore, submitted that even if this Court comes to the conclusion that the Appellant was the author of the injuries, the conviction at the highest could be under Section 304 Part II and not under Section 302 of the I. P. C. 5. State of Kerala [AIR 1966 Supreme Court 1874]. 4. It is, therefore, submitted that even if this Court comes to the conclusion that the Appellant was the author of the injuries, the conviction at the highest could be under Section 304 Part II and not under Section 302 of the I. P. C. 5. On the other hand, the learned APP appearing on behalf of the Respondent-State submitted that the trial Court has given cogent reasons while convicting the accused and therefore, there was no reason to interfere with the judgment and order of the trial Court. He submitted that the entire case of the prosecution is based on circumstantial evidence. Each and every circumstance has been established by the prosecution. It is further submitted that the motive behind the assault by the appellant is to cause death of the deceased. This motive has been established. It is also submitted that prior enmity was established by the prosecution by examining the witnesses; and secondly, it was also established that one day prior to the incident, there was an altercation between the deceased and the Appellant herein. He further submitted that there are witnesses who had seen the accused assaulting the deceased. The chain of evidence, in the circumstances, clearly establishes that the Appellant alone was responsible for the assault on the deceased. He submitted that son of the deceased had seen the accused with a sickle in his hand and had seen his father was lying on the ground, with bleeding injury on his head. He submitted that this evidence was corroborated by the brother of the deceased (PW 5) who had seen the Appellant running away with the sickle in his hand towards his house. It is submitted his brother had seen that the accused came running with sickle in his hand, from the house of deceased. It is submitted that the chain of circumstances was complete and both the doctors PW 7 and PW 8 had in clear terms stated that the said injuries could have been caused by the sickle and it was sufficient in the ordinary course of nature to cause the death. 6. We have heard both the counsel – the learned counsel appearing on behalf of the Appellant and the learned APP appearing on behalf of the Respondent-State. 6. We have heard both the counsel – the learned counsel appearing on behalf of the Appellant and the learned APP appearing on behalf of the Respondent-State. We have gone through the judgment and order of the trial Court and also evidence of the prosecution. In our view, the trial Court has given cogent reasons while arriving at a conclusion that the Appellant had committed the offence of murder, and therefore, in our view, the trial Court had rightly convicted the accused for the offence punishable under S. 302 of the I. P. Code. 7. The medical evidence on record clearly establishes that death of the deceased was unnatural and homicidal. PW 7 Dr. Sarode in his evidence has mentioned the injuries, which were found on the person of the deceased and has given the opinion that cause of death was due to the injuries on the skull. According to PW 7, there were three contused lacerated wounds on the skull and there was also fracture at two places, which had caused the death of the deceased. PW 8 – Dr. Sanjay Shivde had also in clear terms stated that there were three large injuries on the scalp of the deceased. Both the medical officers had stated that said injuries were caused by the sickle which was found in the hands of the accused. The trial Court, therefore, had rightly held that death of the deceased was homicidal. 8. Though the wife of the deceased Nirmala Pawar (PW 1) who was also complainant, is not an eye witness to the said incident and though the son of the deceased (PW 4) and brother of the deceased (PW 5) did not witness the actual incident which had taken place, the cumulative effect of the evidence of these three witnesses clearly establishes beyond reasonable doubt that the accused was the author of the injuries which were caused to the deceased. PW 1 Nirmala Pawar, wife of the deceased has stated about the dispute between the accused and the deceased and she has also narrated the incident which had occurred one day prior to the incident. This fact was corroborated by the evidence of the son of the deceased PW 4 Kishor Pawar. PW 1 Nirmala Pawar, wife of the deceased has stated about the dispute between the accused and the deceased and she has also narrated the incident which had occurred one day prior to the incident. This fact was corroborated by the evidence of the son of the deceased PW 4 Kishor Pawar. PW 4 had in clear terms stated that he had seen his father lying on the ground and there was bleeding injury on his head and the Appellant/ accused was standing there with a blood stained sickle in his hand; and he and his friends tried to catch the accused; however, he ran away towards his house. The brother of the deceased – Tukaram Pawar (PW 5) has further corroborated this testimony by stating that he had seen the accused came running with blood-stained sickle in his hand from the house of the deceased towards his home. The chain of circumstances, has therefore, been established by the prosecution beyond reasonable doubt, and therefore, in our view, the trial Court was justified in coming to the conclusion that the Appellant was the author of the injuries which were caused to the deceased. 9. The ratio of the judgments on which reliance is placed by the learned counsel for the Appellant, in our view, does not apply to the facts of the present case. 10. The submission of the learned counsel appearing for the Appellant that since the deceased and the Appellant were under the influence of alcohol, and since the deceased was aggressor, the Appellant had in self-defence assaulted the deceased, cannot be accepted, since there is no material on record to establish this fact. It is an admitted position that the Appellant had not examined any defence witness. Similarly, the submission of the learned counsel for the Appellant that since the Appellant was under the influence of liquor, there was no intention on his part to commit murder of the deceased, also cannot be accepted. Since, in our view, the case squarely false under Section 300 Part - III of the I.P.C., since the injuries which were caused, were sufficient in the ordinary course of nature to cause the death. 11. In the result, Criminal Appeal is dismissed. The judgment and the order passed by the trial Court is confirmed.